Conveyancing
Conveyancing is the process by which property is transferred from one person to another person. Whilst it does apply to movable property, it is typically discussed in the context of transfers of heritable property, such as homes and land. Heritable Property Pre purchase Any sale/purchase process begins with the buyer intending to buy a property, and the seller intending to sell a property. Typically a seller will use real estate agent or a solicitor to sell their property on their behalf, this solicitor cannot act for both sides. Seller The Seller will need to obtain a Home Buyers Report. This will typically include: *'Survey report' - This details the value and conditionof the of the home. It sits between a valuation and a structural survey. *'Energy Report' - This details the energy Efficiency of the home, and suggestions for the improvement of this. *'Property Questionaire' - This provides information on the Utilities that service the home, and recent changes to the home. The property report must be no older than 12 weeks old when the home is placed on the market. After this, the report doesn't expire, but it isn't recommended to rely upon a report over 12 weeks old. The surveyor's liability for this report is "reasonable care and skill" (Housing (Scotland) Act 2006) The seller's solicitor is required to meet the requirements of the Money Laundering Regulations 2007 in establishing the sellers identity. The seller and their solicitor will collect the relevant deeds, proof of building and planning permission consents, and other necessary reports such as a property enquiry certificate. Buyer The buyer will arrange finance, and usually engage a solicitor to conduct the conveyancing process. As with the seller, the solicitor will usually need to perform checks to satisfy the requirements of the Money Laundering Regulation 2007. Typically the seller cannot share a solicitor with the lender unless this was agreed before any solicitors were engaged. This varies from England and Wales where this arrangement is common. The buyer obviously needs to locate a property, and may wish to conduct a survey, although more often than not an offer will be made "subject to survey" during missives. They may also want to "note their interest" to be kept up to date on any deadlines for offers. The Buyer then has to make an offer detailing the price and any movable property to be included. This will often include a proposed move in date. The Seller can either accept, reject, or counter this offer. Offer and acceptance (missives) Contracts require two parties with capacity, and this contract must be in writing, however an electronic document with an electronic signature is also acceptable. Until the document is in writing (or if it is lost) the parties can withdraw from the sale. This is the "missives" Typically a common, standard 14 page form will be used to convey the offer. Any counter offer or "qualified acceptance" is a brand new offer, destroying the previous offer - it cannot be accepted (Rutterford v Allied Breweries) Whether or not a fax or PDF can constitute acceptance is disputed. McIntosh v Alan 1998 suggested that missives can be concluded by Fax, but Park (Petitioners) 2009 suggested that this was wrong, and that missives are completed by the physical delivery of the signed occontract, unless expressly agreed otherwise. The Price, the property and the parties must cleary be stated. The price can either be specific or readily obtainable (it can't be next best offer + 1). Once this has been established the missives are complete. The missives will often include the scottish standard clauses, note the fixtures or movable items to be included, and indicate who is the owner of the minerals after the sale Post missives The Key obligation on the seller at this point is to transfer good and marketable title, posession of the property, and deliver a disposition to this effect. The seller is also required to show clear property searches. The buyer is of course obligated to pay, take possession, and register their new interets in the land register.